Citation Nr: 21005354 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-43 003 DATE: February 1, 2021 REMAND Entitlement to an earlier effective date prior to September 9, 2015, for a total disability rating based on individual unemployability (TDIU) on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1981 until his honorable discharge in November 1985. The Board thanks the Veteran for his service to our country. This appeal arose before the Board of Veterans’ Appeals (Board) from a February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board remanded entitlement to an extraschedular TDIU and directed the Agency of Original Jurisdiction (AOJ) to submit a request for extraschedular consideration to the Director of Compensation Service. In a July 2018 Administrative Review for Extraschedular Consideration under 38 C.F.R. § 4.16(b), the Director of Compensation Service granted entitlement to TDIU benefits on an extraschedular basis effective September 9, 2015. In December 2018, the Board denied entitlement to an extraschedular TDIU prior to September 9, 2015. With respect to this issue, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In May 2020, the Court vacated the December 2018 Board decision and remanded the matter of entitlement to a TDIU on an extraschedular basis for readjudication. A TDIU on an extraschedular basis prior to September 9, 2015, is remanded. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disability(ies). 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disability(ies) alone are of sufficient severity to produce unemployability.” Halstead v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disability(ies). See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual Veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the Veteran’s history, education, skill and training, (b) the Veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting”, the Board finds that sedentary employment is a job were the worker primarily sits down. Webster’s II New College Dictionary 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to September 9, 2015, the Veteran was service connected for lumbosacral strain (claimed as herniated disc) which was rated as 10 percent disabling from May 5, 2011, and as 40 percent disabling from September 9, 2015, to the present. As a result, prior to September 9, 2015, the Veteran did not meet the schedular criteria for entitlement to TDIU. 38 C.F.R. § 4.16(a). If the Veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16(a), as in this case, he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disability(ies). 38 C.F.R. § 4.16(b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service (“Director”) is necessary prior to a determination on eligibility. In June 2018, the AOJ referred the matter to the Director for administrative review for entitlement to a TDIU in accordance with 38 C.F.R. § 4.16(b). The record reflects that in July 2018, the Director denied the Veteran’s extraschedular TDIU claim prior to September 9, 2015, finding that the opinions stating the Veteran cannot work prior to September 9, 2015, were not supported by objective medical evidence. The Court in Ray held that the Board’s determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board “must provide adequate reasons or bases for deviating from its earlier referral decision.” Ray, 31 Vet. App. at 73; see also Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that the Director does not have nonreviewable discretion and the Board has the jurisdictional authority to review the Director’s extraschedular decisions). The Veteran contends an effective date of May 5, 2011, is warranted, which is the date the Veteran filed an initial claim for service connection for his lumbar spine disability. See October 2014 VA Form 9. As a preliminary matter, the evidence shows the Veteran has been unemployed throughout the period on appeal. In September 2015, the Veteran reported he became too disabled to work on May 1, 2010, and he has been unable to secure or follow any substantially gainful occupation due to his lumbar spine disability. The Board notes that the Veteran’s occupation outside of his military service was a Chief Financial Officer (CFO)/accountant/bookkeeper at Central Metals, Inc., from December 1985 to April 2010. The Veteran has a high school education, with some college, but no degree was noted of record, or any certificate for specialized vocational training. See September 2015 and June 2018 VA Form’s 21-8940. While the Board notes the question of unemployability is ultimately a legal determination for the trier of fact, as opposed to a medical finding, the medical evidence of record is probative as to the Veteran’s condition and how it affects his employability. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The competent medical evidence is as follows: The Veteran was afforded a VA back conditions examination in January 2012. During the examination, the Veteran reported that he had experienced lumbar spine pain since military service. He stated the pain radiated from his lumbar spine, to his thighs, down his legs, to his feet. He reported constant pain, at a level described as mild to moderate, and severe on occasion. He was prescribed morphine for the pain. He also stated that he cannot walk and sit for more than 10 minutes. The examiner diagnosed mild lumbosacral strain and observed that as a result of the Veteran’s lumbar spine pain, he is restricted when it comes to prolonged sitting, standing, walking, and lifting. According to the examiner, the Veteran’s lumbar spine disability has no effect on his employment. For purposes of the TDIU claim, the Court found the January 2012 examination inadequate in light of the fact that the examiner did not review the Veteran’s medical evidence prior to rendering an opinion regarding his employability. The Court stated, the evidence of record suggests that prior to September 9, 2015, the Veteran’s lumbar spine disability did affect his ability to lift, bend, sit, stand, and walk, all of which interfered with his ability to work. In a November 2011 letter to the Social Security Administration, the Veteran’s physician, Dr. B.S., stated the Veteran’s primary diagnoses included cervical, thoracic, and lumbar herniated discs with disc derangement, diffuse spondylosis, cervical stenosis, and L5 radiculopathy, resulting in chronic pain, decreased active range of motion, and gait dysfunction. Dr. B.S. stated the Veteran remains unable to sit, stand or walk for greater than 5 to 10 minutes without changing position, including lying down at unpredictable intervals. In a March 2012 “Continuance of Waiver Benefits” form, the Veteran attributed his inability to work to his multiple herniated discs and stenosis. Dr. B.S. agreed that the Veteran was not able to sit, stand, or walk for longer than 5 to 10 consecutive minutes and is unable to work, including desk work, as a result of these restrictions. In the June 2012 “Individual Disability Status Update” form, the Veteran reported an increase in weakness in his legs, and increased pain in his hips, neck, and lower back. His physician, Dr. L.K., advised the Veteran could not sit or stand for periods longer than 15 to 20 minutes, and he could not lift, climb, or bend as a result of symptoms attributed to a myriad of disabilities, to include his lumbar spine disability. In the December 2012 “Supplemental Attending Physician’s Statement”, Dr. B.S., stated, as a result of the Veteran’s disabilities, including his diagnosed lumbar spine disability, chronic pain disorder, and bilateral numbness and burning in his feet, the Veteran was unable to sit or stand for more than 10 minutes, he was unable to lift more than 3 to 5 pounds, and he was unable to walk for more than 10 minutes at a time. Dr. B.S. stated these restrictions began in September 2006 and were expected to continue for the rest of the Veteran’s lifetime. In the December 2013 “Supplemental Attending Physician’s Statement”, Dr. L.K. opined, that due to the Veteran’s pain he was unable to sit, stand, or walk for more than 10 minutes at a time. Dr. L.K. further opined, the Veteran was not allowed to lift more than 5 pounds at a time. In a May 2014 “Continuance of Waiver Benefits” form, the Veteran attributed his inability to work to his multiple herniated discs and stenosis. He asserted that he was unable to lift more than 10 pounds, and he was unable to sit or stand for more than 10 minutes. In a June 2015 “Individual Disability Status Update”, Dr. L.K. opined the Veteran could not drive long distances, lift more than 10 pounds, perform excessive bending or standing for prolonged periods, due to pain as a result of his disabilities, to include his lumbar spine disability. Dr. L.K. added, the Veteran’s condition was chronic and progressive. The Veteran was afforded an additional VA back conditions examination in September 2015. The examiner diagnosed lumbosacral strain, degenerative arthritis of the spine, chronic pain syndrome, and lumbar radiculopathy. The Veteran stated he was unable to keep up with his occupational duties because of his lower back pain, and he went on [long-term] disability for his herniated disc and diabetes. The examiner stated the Veteran’s thoracolumbar spine disability affects his ability to work; the Veteran could not be gainfully employed in a physical/labor type job. In a subsequent application for a TDIU, dated June 2018, the Veteran asserted that his lumbar spine disability was preventing him from securing or following any substantially gainful occupation. He stated he became too disabled to work in May 2010. According to the Veteran, the pain in his lower back became so great he was unable to perform the duties his job required. He remarked, because of the pain he could not lift corporate file boxes, he could not sit to perform everyday duties, and he could not rise from a sitting position without great pain and effort. See June 2018 VA Form 21-8940. In her June 2018 correspondence, Dr. L.K. provided a statement specifically addressing the symptoms and restrictions due to the Veteran’s service-connected lumbar spine disability. Dr. L.K. stated the Veteran had been her patient since March 2012, and since 2010 the Veteran had been diagnosed with lumbar spondylosis, degenerative disc disease, and spinal stenosis, and these diagnoses had been documented through multiple imaging studies and evaluated by orthopedic surgery and pain management. Dr. L.K. stated that the Veteran has chronic, moderate to severe pain, with radicular symptoms, reported as sharp radiating pain into his right leg. Dr. L.K. maintained that the Veteran’s current restrictions, as advised since 2010, included the following: (1) no lifting more than 10 pounds to avoid flareups of his back pain; (2) no standing or walking more than 10 minutes as this causes radicular symptoms and sharp radiating pain; and (3) no sitting longer than 10 minutes as this causes radicular symptoms in his buttocks down to his legs. Dr. L.K. concluded, due to these restrictions, the Veteran has been unable to work in any capacity for gainful employment. The Board finds the evidence or record, and ostensibly laid out herein, to be inadequate to be dispositive of the claim for extraschedular TDIU consideration, prior to September 2015. Specifically, the vast majority of the private and VA evidence sited herein refer to more than the single disability in which the Veteran is service-connected for at the time prior to September 2015. The Board notes that prior to September 2015, the Veteran was only service-connected for a single back disability, at 10 percent. Whereas most of the medical analysis and opinion regarding functional ability, cited here, seem to speak to the totality of the Veteran’s spine disabilities, which include cervical, lumbar, and even effects of radiculopathy. Therefore, as there is no proper opinion in which explicitly speak to the functional loss to the Veteran’s occupation, due exclusively and solely to the Veteran’s back disability, the Board must remand the claim to acquire an adequate retrospective opinion. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA and private treatment records and associate those records with the claims file. 2. Provide the Veteran’s claims file, and this Remand, to an appropriately qualified VA examiner to provide a retrospective opinion regarding the functional loss of the Veteran’s back disability only, prior to September 2015. To this end, the examiner must provide an opinion regarding any functional effects of the Veteran’s back disability, solely, during this time period, to include if such condition prevented the Veteran from working any type of work. If the examiner determines that the Veteran’s is able to work despite his back disability, he/she must explicitly note what type of work would be possible, (i.e. type of labor, sedentary) and, if any restrictions or limitations would have been required. The examiner must note his/her review of the claims file and medical history, and must explicitly speak to those findings noted herein, and the medical evidence already of record. If the examiner cannot provide an opinion regarding the functional loss due solely to the Veteran’s back disability during this earlier time period prior to September 2015, without resorting to mere speculation, the examiner must explicitly state as such. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.